Two-Stepping Around a Minor’s Constitutional Right to Abortion

A woman’s constitutional right to abortion was first generally established in the U.S. Supreme Court decision in Roe v. Wade, and a female minor has the same right to abortion. In the majority of states, however, pregnant young women are required to either notify their parents or to get their parents’ consent before obtaining a safe, legal abortion. These parental involvement laws do not infringe on a minor’s constitutional right to abortion if a proper “judicial bypass” proceeding is available. But in Texas, the recently amended judicial bypass law imposes additional extensive — possibly unconstitutional — restrictions on a pregnant minor who seeks a judicial bypass. In step one, the Texas Legislature amended the judicial bypass statutes, effective January 2016, that add onerous obstacles to a minor’s constitutional right to abortion and compromise the minor’s anonymity during the judicial bypass proceeding. In step two, the Supreme Court of Texas issued judicial bypass rules that establish a timing barrier to a pregnant minor accessing an abortion, because now a minor’s application is automatically denied when a judge fails to hold a hearing or refuses to rule on a minor’s application within the five-day, statutory deadline. The result is that Texas is “two-stepping” around a minor’s constitutional right to abortion in that the amended judicial bypass law likely fails to meet the requirements of expediency and anonymity as set forth in U.S. Supreme Court precedent. This Article addresses the judicial bypass procedure and explores the potential constitutional violations of the Texas judicial bypass law. It also provides general recommendations for all states to consider when reexamining their judicial bypass laws, as they should not take Texas’s lead by two-stepping around a minor’s constitutional right to abortion.